Khaki calibrations

The idea of setting up a National Investigation Agency is not new.

The idea of setting up a National Investigation Agency NIA is not new.nbsp; Numerous expert bodies, like the National Human Rights Commission, the Soli Sorabjee committee, Padmanabahiah committee, Justice Malimath committee and parliamentary standing committee of the ministry of home affairs have recommended its establishment. Way back in 2001, the ruling BJP government at the Centre had prepared a proposal to establish a central law enforcement agency to investigate certain crimes having interstate or international ramifications, like terrorist incidents, arms and drug trafficking, hijacking, money laundering, counterfeiting of currency, espionage and crimes targeting national infrastructure.nbsp; The proposal fell through because some of the chief ministers were not willing to accept it.nbsp;nbsp;They felt it was an unwarranted and avoidable intrusion into their jurisdiction.

The recent Mumbai incidents led to the revival of the demand to treat certain types of crime as a national problem and controlling them as a federal responsibility.nbsp;Public debate on the subject has revolved around two main issues.nbsp; One is the Parliament8217;s competence to enact this law.nbsp; The other, more important, issue relates to the substance of the National Investigating Agency Bill, 2008 and its enforcement.nbsp; The legislation shows all the signs of being drafted in unseemly haste. The charter of this legislation is narrow and limited.nbsp; As per the preamble and section 31 of the act, the agency has been established only to investigate and prosecute the scheduled offences.nbsp; The act is conspicuously silent about other functions, like preventing and controlling security related crimes, identifying and assessing the nature and scope of terrorist threats to the country, collecting and analysing intelligence etc.

Section 41 of the act vests the superintendence of the agency in the central government.nbsp; There is no provision in the legislation to ensure the agency will be autonomous in its functioning and not be misused. The record of the other central agency i.e. the CBI does not inspire confidence.nbsp; There is enough evidence to show that the ruling party at the Centre has often misused it to harass opponents.nbsp; An agency of this type cannot function effectively without full support and cooperation of the state governments.nbsp;nbsp; Whether this agency will get cooperation from the states ruled by opposition parties is yet to be settled.

Administration of the agency vests in an officer of the rank of DGP, but the act does not prescribe a procedure that ensures the selection of the best from the police forces in the country.nbsp; The absence of such a provision is striking, because selection of the heads of police forces in the country, both at the Centre and states, has often been guided by considerations other than merit.nbsp;

Section 6 of the bill requires the state government to inform the central government about the commission of a scheduled offence.nbsp; It is for the central government to decide, firstly, whether it is a scheduled offence and, secondly, whether it is a fit case to be taken up for investigation by the agency.nbsp; Section 6 debars the state government to proceed with the investigation once the agency has been asked to do so.nbsp; Since the Centre has been given the overriding discretion to pick and choose what cases to investigate and prosecute, it creates an unwholesome concentration of power at the central level. The Centre may relegate the less glamorous investigations and prosecutions to the states.nbsp; The idea in some cases may be to show that a particular state is not capable of dealing with important matters affecting national security.

As per the Statement of Objects and Reasons of the act, the NIA is being established in a 8220;concurrent jurisdiction framework8221; However, investigation, as defined in Section 2 h of the CrPC, is mainly police work and 8216;Police8217; is an item confined to the state list in the Constitution. That is why section 6 of the Delhi Special Police Act that governs the functioning of the CBI prohibits its jurisdiction in a state without the consent of its government.nbsp; The centre is therefore walking on a very tight rope by setting up this police agency the way it has been done.

The writer is former director R038;D, bureau of police research and development